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McKay v Findex Group Limited

McKay v Findex Group Limited

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Case Copied 27 July 2022 42 min read

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	McKay v Findex Group Limited
Citation:	[2022] ACTSC 191
Hearing Date:	17 February, 15 November 2021
DecisionDate:	27 July 2022
Before:	McWilliam AsJ
Decision:	(1) Paragraphs [5], [6] and [7] of the Statement of Claim filed 23 March 2020 are struck out. (2) The plaintiff is to file an Amended Statement of Claim on or before 31 August 2022. (3) The proceeding is to travel with SC 172 of 2020 and the matters are listed for directions as to the further case management of the proceedings on Monday 5 September 2022 at 9.30am. (4) The application is otherwise dismissed. (5) The plaintiff is to pay 80% of the defendants’ costs of the application, with such costs not to be recoverable until the conclusion of the substantive proceeding.
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal – whether a good defence disclosed – whether doctrine of Anshun estoppel applies – whether waiver operates within the adjudicative process by the deliberate act of a party in previous proceedings – where counsel communicated to a court that the plaintiff was not going to rely upon the point now raised – whether proceedings otherwise an abuse of process where same arguments are brought in separate proceedings seeking to enforce an undertaking given as to damages. PRACTICE AND PROCEDURE – strike out – whether proceedings barred by s 16B of the Limitation Act 1985 (ACT) – whether plaintiff failed to comply with s 51 of the Civil Law (Wrongs) Act 2002 (ACT) – whether damages allegation properly pleaded
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 51 Commonwealth Constitution ss s 51, 118 Competition and Consumer Act 2010 (Cth), s 131, sch 2 Court Procedures Rules 2006 (ACT) rr 425, 505, 1147 Limitation Act 1985 (ACT) s 16B Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) rr 6.1, 10.20, 10.19
Cases Cited:	A Goninan & Co v Atlas Steels [2003] NSWSC 956 ACCC v Jutsen (No 3) [2011] FCA 1352; 206 FCR 264 ALDI Foods Pty Limited as General Partner of ALDI Stores (a Ltd Partnership) v Transport Workers' Union of Australia [2020] FCA 269 Banks v Galea [2019] FCA 986 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 36 Bolas v Calvary Healthcare Limited [2016] ACTSC 58 Breavington v Godleman (1988) 169 CLR 41 Clayton v Bant [2020] HCA 44 Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379 Commonwealth v Verwayen (1990) 170 CLR 394 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340; 99 NSWLR 229 Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] QSC 28; 2 Qd R 366 Felton v Mulligan (1971) 124 CLR 367 FGL v HNL (Supreme Court of New South Wales, Rein…

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: [2022] ACTSC 191
Decision Date

CaseChat Overview and Summary

David McKay (the plaintiff) brought an action against Findex Group Limited (the first defendant), Spiro Paule (the second defendant), Danielle Ludbey (the third defendant), and Phillip Hart (the fourth defendant) (the defendants) for trespass. The plaintiff claims that a search of his apartment, which was carried out pursuant to a search order made by the Supreme Court of New South Wales on 16 September 2016, was an unauthorised trespass. The defendants filed an application for summary dismissal or striking out of the plaintiff's claim on various grounds, including that it was an abuse of process and that the plaintiff had waived his right to bring the claim. The Court considered the application on the basis of the evidence filed by both parties, as well as the arguments made in writing and orally. The Court found that the claim was not amenable to summary dismissal and that the defendants had not established that the claim was bound to fail. However, the Court also found that the plaintiff was precluded from challenging the validity of the search order in this proceeding, and that the claim based on the execution of the search order would need to be repleaded. The Court struck out the paragraphs of the claim that were based on invalidity of the search order and ordered that the proceeding travel with the Search Order proceeding. The plaintiff was ordered to pay 80% of the defendants' costs of the application.

Orders