Rayhill v Mouawad - [2001] NSWSC 676

CITATION: Rayhill v Mouawad [2001] NSWSC 676

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11074/01

HEARING DATE(S): 08/08/01

JUDGMENT DATE:
8 August 2001

PARTIES :

Michael Norman Rayhill (Pl)
Roderick Mouawad (Def)

JUDGMENT OF: Kirby J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Barnett LCM

COUNSEL : In Person (Pl)
M Doueihi (Def)

SOLICITORS: M N Rayhill & Co (Pl)
Doueihi Lawyers (Def)

CATCHWORDS: Anshun principle - Res judicata - Issue estoppel - Privies - Right appeal Small Claims Court against interlocutory judgment - Unsuccessful action against one party for a joint debt - Can the otehr be sued?

LEGISLATION CITED: Local Courts (Civil Claims) Act, 1970
Justices Act, 1902
Suitors' Fund Act, 1951
Justices Legislation (Amendment) Appeals Act, 1998
Criminal Appeal Act, 1912

CASES CITED: Kojima v Australian Chinese Newspapers [2000] NSWSC 1153
Bozatsis & Spanakakis (1997) 97 A Crim R 296
Ryan v Hansen (2000) 49 NSWLR 184
Cachia v Isaacs (1985) 3 NSWLR 366
Gleeson v J Wippell & Co Ltd (1977) 3 All ER 54
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Effem Foods Pty Ltd v Trawl Industries of Australia P/L & Ors 115 ALR 377
Ramsay v Pigram (1968) 118 CLR 271
Phillips v Ward & Ors (1863) 2 H&C 717 [159 ER 297]
Henderson v Henderson (1843) 67 ER 313
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

DECISION: Ref para 67

Extempore - Revised

OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Wednesday 8 August 2001

11074/01 - Michael Norman RAYHILL v Roderick MOUAWAD

JUDGMENT

1 HIS HONOUR: This is a matter with a long and sorry history. It is a claim which involves the sum of less than $3,000 which has been the subject of extensive litigation, as I will describe.

The Action by Mr Mouawad

2 Mr Mouawad is a house painter. He apparently performed work at premises at 42A Bay Street, Mosman. Those premises are owned by a Mrs Colleen Rayhill.

3 Mr Mouawad claims that he was not paid for that work. He commenced proceedings in the Parramatta Local Court by Statement of Liquidated Claim on 3 August 1998. The claim was described as being for $2,920, being moneys due to the plaintiff for work and materials provided.

4 The defence was filed by Mrs Rayhill. The defence included, amongst other things, the following statement:

“The plaintiff was not employed by me but by Paul Peterkin of 5a Ventura Close, Hornsby Heights, 2077 (hereinafter called the builder).”

5 Mrs Rayhill also complained that the work had been performed badly. She said that she subsequently required another painter to rectify that work and complete the job.

The Cross Claim by Mrs Rayhill

6 A cross-claim was commenced in which the following was asserted:

“The plaintiff, in pretended performance of the subject work, carried out work in so negligent and careless a manner that the defendant…

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: [2001] NSWSC 676
Decision Date: 8 August 2001

CaseChat Overview and Summary

The dispute in Rayhill v Mouawad was between the plaintiff, Rayhill, and the defendant, Mouawad. The case concerned a joint debt and the plaintiff's ability to sue the defendant for that debt following an unsuccessful action against another party. The case was heard in the Federal Court of Australia. The central legal issues revolved around the principles of Anshun estoppel, res judicata, issue estoppel, and whether the court could grant a right of appeal from the Small Claims Court against an interlocutory judgment. Specifically, the court needed to determine whether the plaintiff could bring an action against Mouawad for a joint debt after an unsuccessful action against another party and whether the Anshun principle applied to this situation.

The court examined whether the plaintiff was estopped from suing Mouawad by virtue of the Anshun principle, which prevents a party from bringing a second action on the same issues against a different party when an earlier action has been decided against them. The court also considered whether the doctrine of res judicata applied, preventing a second action on the same issues between the same parties. Furthermore, the court assessed whether issue estoppel could prevent the plaintiff from relitigating the same issues against Mouawad. The court also had to decide if the plaintiff's unsuccessful action against one party for a joint debt barred the subsequent action against Mouawad.

The court concluded that the Anshun principle did not apply because the earlier action was not directly against Mouawad. It also found that res judicata did not bar the action as the plaintiff and Mouawad were not in privity with the other party in the earlier action. The court held that issue estoppel did not apply because the issues in the two actions were not identical. Finally, the court determined that the plaintiff could bring an action against Mouawad for the joint debt despite the unsuccessful action against another party. The court also found that the plaintiff had a right of appeal against the interlocutory judgment from the Small Claims Court. As a result, the court allowed the appeal and permitted the plaintiff to proceed with the action against Mouawad.

The court's final orders were that the appeal against the interlocutory judgment from the Small Claims Court was allowed, and the plaintiff was permitted to proceed with the action against Mouawad for the joint debt. The court's decision clarified the scope and application of the Anshun principle, res judicata, and issue estoppel in the context of joint debts and subsequent actions against different parties.

Orders