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Pezzano v Hoffman

Pezzano v Hoffman

Case [1999] WASC 231 16 November 1999

Anshun Estoppel

Res Judicata

Abandonment of Claim

Amendments to Pleadings

Estoppel

Civil Litigation & Procedure

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PEZZANO -v- HOFFMAN & ANOR [1999] WASC 231

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 231
Case No:	CIV:1647/1999	Heard:	11 & 16 NOVEMBER 1999
Coram:	MASTER BREDMEYER	Delivered:	16/11/99
No of pages:	10	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	ROCCO DOMENICO PEZZANO TREVOR DAVID HOFFMAN HOFFMANS (A FIRM)
Catchwords:	Pleading Application to strike out action as an abuse of process on the basis of Anshun estoppel, res judicata and abandonment of claim
Legislation:	Nil
Case References:	Henderson v Henderson (1843) 3 Hare 100 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Walter Developments Pty Ltd & Ors v Roberts, unreported; FCt SCt of WA; Library No 950359; 26 July 1995 West Australia Land Authority v Simto Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 980560; 25 September 1998 Baines v State Bank of New South Wales [1985] 2 NSWLR 729 Bayne v Blacke (No 3) (1909) 9 CLR 366 Brinds Ltd v Chapmans Ltd (1985) 10 ACLR 97 Bryant v The Commonwealth (1995) 57 FCR 287 Buckland v Palmer (1984) 3 All ER 554 Coles v Wood [1981] 1 NSWLR 723 Currabubula Holdings Pty Ltd v Mita Copiers Australia Pty Ltd, unreported; FCt of A (Burchett J); Library No 307/95; 5 May 1995 Fenier v Domachuk (1994) 35 NSWLR 485 Forsayth NL v Australian Gold Mines No 3 (1992) 8 WAR 176 Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641 Macquarie Bank v National Mutual Life (1996) 40 NSWLR 543 Makhoul v Barnes (1995) 60 FCR 572 Metwally v University of Wollongong (1985) 60 ALR 68 Moore & Ors v Inglis (1976) 50 ALJR 589 Price v Price (1910) 27 WN (NSW) 114 Renowden v McMullin & Anor (1970) 123 CLR 584 Scanlan's New Neon Ltd v Toohey's Ltd (1945) 62 WN (NSW) 53 Scott v Beneficial Finance Corp Ltd, unreported; FCt Fed C of A; Library No 9405645; 31 May 1994 Scott v Beneficial Finance Corp Ltd, unreported; Fed C of A; Library No 938/93; 17 December 1993 Shillito v Bent (1973) WR 762 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 The Commonwealth v Verwayen (1990) 170 CLR 394 Thoday v Thoday [1964] P 181 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335 Triantafillidis v National Australia Bank (1995) V Conv R 54 Verwayen v Commonwealth (1990) 170 CLR 394 Williams v Spautz (1992) 112 ALR 191 Yovich v Collyer [1972] WAR 143

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PEZZANO -v- HOFFMAN & ANOR [1999] WASC 231 CORAM : MASTER BREDMEYER HEARD : 11 & 16 NOVEMBER 1999 DELIVERED : 16 NOVEMBER 1999 FILE NO/S : CIV 1647 of 1999 BETWEEN : ROCCO DOMENICO PEZZANO

Plaintiff

AND

TREVOR DAVID HOFFMAN

First Defendant

HOFFMANS (A FIRM)

Second Defendant

Catchwords:

Pleading - Application to strike out action as…

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

AGLC: Pezzano v Hoffman [1999] WASC 231
Case: [1999] WASC 231
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia considered an application by the defendants to strike out the plaintiff's action as frivolous and an abuse of process. The plaintiff, Rocco Domenico Pezzano, sought relief against the defendants, Trevor David Hoffman and Hoffmans (a firm), for various alleged breaches of contract and professional negligence. The defendants argued that the plaintiff's claims were barred by Anshun estoppel, res judicata, and abandonment of claims. The court examined the nature of the first action, which involved a similar cause of action, and found that the principle of Anshun estoppel did not apply to preclude the current action, as the issues were not so closely related that they should have been raised in the prior proceedings. The court also found that the doctrine of res judicata did not apply because the first judgment did not address the specific claims presented in the current action. Furthermore, the court determined that the plaintiff had not abandoned the claims in the prior action and that the claims could proceed in the current action. The court dismissed the application to strike out the action.

Orders