McKay v Findex Group Limited

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McKay v Findex Group Limited

Citation:

[2021] 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…

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Details
Case
[2021] ACTSC 191
Decision Date

CaseChat Overview and Summary

The plaintiff, McKay, filed a claim against Findex Group Limited seeking damages for breach of contract and misrepresentation. The case was heard in the Supreme Court of the Australian Capital Territory. The defendants applied for the claim to be struck out and for summary dismissal, asserting that the plaintiff had failed to properly plead the damages, had not disclosed a good defence, and that the proceedings were barred by limitation and constituted an abuse of process. The court was required to determine whether the plaintiff's claim was properly pleaded, whether the defendants had a good defence, and whether the plaintiff's proceedings were barred by limitation or constituted an abuse of process.

The court found that the plaintiff had not properly pleaded the damages, as required by section 51 of the Civil Law (Wrongs) Act 2002 (ACT), and that paragraphs [5], [6] and [7] of the Statement of Claim were accordingly struck out. The court also found that the defendants had a good defence, as the plaintiff had not raised certain arguments in the previous proceedings, and that the doctrine of Anshun estoppel applied. The court further found that the plaintiff's proceedings did not constitute an abuse of process, as the arguments raised were different from those in the previous proceedings. However, the court found that the plaintiff's claim was barred by limitation under section 16B of the Limitation Act 1985 (ACT), but that this did not apply to the breach of contract claim.

The court ordered that the plaintiff was to file an Amended Statement of Claim on or before 31 August 2022, and that the proceeding was to travel with SC 172 of 2020. The court further ordered that the application was otherwise dismissed, and that the plaintiff was to pay 80% of the defendants' costs of the application, with such costs not to be recoverable until the conclusion of the substantive proceeding. The matters were listed for directions as to the further case management of the proceedings on Monday 5 September 2022 at 9.30am.

Orders

Orders of the court

(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.

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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