18 and 19 June 2020; further submissions received on 8 July 2020 and 28 September 2020
Date of orders:
2 February 2021
Decision date:
02 February 2021
Jurisdiction:
Equity - Applications List
Before:
Williams J
Decision:
Leave is granted to the plaintiff to rely on four affidavits in support of his application for leave to file a verified statement of claim dated 17 September 2019. However, leave to file that verified statement of claim is refused.
Catchwords:
PRACTICE AND PROCEDURE – application – in proceeding commenced in 1993, order made requiring plaintiff to obtain leave to file statement of claim seeking orders setting aside various costs orders made between 1995 and 2014 – whether the proposed pleading discloses a reasonable cause of action under Uniform Civil Procedure Rules 2005 (NSW), rr 36.15(1) and/or 36.16(3)
JUDGMENTS AND ORDERS – res judicata – cause of action estoppel – issue estoppel – Anshun estoppel
PRACTICE AND PROCEDURE – inherent jurisdiction – abuse of process
[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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AGLC
Preston v Nikolaidis [2021] NSWSC 36
Case
[2021] NSWSC 36
Decision Date
CaseChat Overview and Summary
The plaintiff sought to set aside various costs orders made in a proceeding commenced in 1993. The proceeding was before the Supreme Court of New South Wales. The plaintiff applied to set aside the costs orders by filing a statement of claim. The defendant opposed the application on the basis that the proposed pleading did not disclose a reasonable cause of action. The defendant further argued that the plaintiff was estopped from seeking to set aside the costs orders on the basis of res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel. The plaintiff contended that the court's inherent jurisdiction should be exercised to prevent an abuse of process.
The court considered whether the proposed pleading disclosed a reasonable cause of action. The court held that the plaintiff's proposed pleading did not disclose a reasonable cause of action because it was based on an argument that had already been decided in the proceeding. The court further held that the plaintiff was estopped from seeking to set aside the costs orders on the basis of res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel. The court held that the plaintiff's application was an abuse of process because it was an attempt to relitigate a matter that had already been decided. The court held that the plaintiff was not entitled to have the costs orders set aside.
The court dismissed the plaintiff's application. The court held that the plaintiff was not entitled to have the costs orders set aside. The court held that the plaintiff's application was an abuse of process because it was an attempt to relitigate a matter that had already been decided. The court further held that the plaintiff was estopped from seeking to set aside the costs orders on the basis of res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel. The plaintiff was ordered to pay the defendant's costs of the application.