Smith v Wikramanayake - [2010] NSWDC 319

NEW SOUTH WALES DISTRICT COURT

CITATION:
Smith v Wikramanayake [2010] NSWDC 319

FILE NUMBER(S):

HEARING DATE(S):
12 May 2010, 14 May 2010, 3 June 2010, 22 June 2010

JUDGMENT DATE:
25 June 2010

PARTIES:
David SMITH
Margaret Anne and Penrith Stimate WIKRAMANAYAKE Wagga Road Properties Pty Ltd

JUDGMENT OF:
Knox SC DCJ

COUNSEL:
Mr P Bolster
Mr G Sirtes SC

SOLICITORS:
Verekers Lawyers
Macpherson & Kelley

CATCHWORDS:
Stay
Abuse of process
Anshun principles
Prior proceedings between same parties
Identity of proceedings
Scope of agreement giving rise to proceedings

LEGISLATION CITED:
Uniform Civil Procedure Rules

CASES CITED:
Smith v Wikramanayake [2007] NSWSC 136
Smith v Wikramanayake & Anor [2008] FMCA 1425
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33
Greenhalgh v Mallard [1947] 2 All ER 225
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
General Steel (General Steel Industries Incorporated) v Commissioner for Railways (NSW) (1964) 112 CLR 125
Tang Man Sit v Capacious Investments Ltd [1996] AC 514
Baxter v Obacelo Pty Ltd [2001] HCA 66
Bryant v Commonwealth Bank of Australia [1995] 130 ALR 129

TEXTS CITED:

DECISION:
The statement of claim is stayed until such time as the facility known as ‘Lavender Lodge’ at 286 Warren Street, Lavington in Wagga is sold.
The Respondent is to pay the Applicants’ costs of the Motion on the usual basis.

JUDGMENT:

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JUDGMENT

Motion

By Notice of Motion filed 12 March 2010 the Applicants, Mr and Mrs. Wikramanayake, seek orders that the respondent’s (Mr. Smith’s) statement of claim be dismissed and, in the alternative, that the proceedings be permanently stayed.

Both parties seek orders for costs.

Parties

To avoid confusion as to the parties given the variety of proceedings, I will refer to the Applicants as Mr and Mrs Wikramanayake and the Respondent to the Motion as Mr Smith. Mr and Mrs Wikramanayake are the Defendants and cross-claimants in the substantive proceedings and were the defendants in earlier Supreme Court proceedings between effectively the same parties. Mr Smith is the Plaintiff and was the First Plaintiff and cross-defendant in the Supreme Court proceedings.

Background

Mr Smith was engaged as a consultant by a developer ('Combined House') in the development of an aged care facility, ‘Lavender Lodge’ at 286 Warren Street, Lavington in Wagga. At the relevant time, Combined House owned the property to be developed. Mr. Smith is experienced in the provision of aged care. He is a qualified accountant and chartered secretary.

Mr and Mrs Wikramanayake are chartered accountants. They are the directors and shareholders of the third Defendant, the third defendant being Wagga Road Properties Pty Ltd. (‘WRP’) in the substantive proceedings. WRP was specifically incorporated for this venture. WRP remains the registered proprietor of the development property - now an aged-care facility (‘the facility’).

Finance for facility

Combined House lodged a development application for 24 apartments for the facility. It ran…

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.

Continue reading Smith v Wikramanayake

Details

AGLC: Smith v Wikramanayake [2010] NSWDC 319
Case: [2010] NSWDC 319
Decision Date: 25 June 2010

CaseChat Overview and Summary

In the Federal Circuit Court, Smith brought proceedings against Wikramanayake regarding an agreement to purchase a facility known as ‘Lavender Lodge’ located at 286 Warren Street, Lavington in Wagga. The primary dispute centred on the validity and enforceability of the sale agreement, and the parties' respective rights and obligations under it. The matter came before the court on a motion by the applicant to stay the proceedings until the property was sold, and for an order for the respondent to pay costs.

The central legal issue for the court was whether to stay the proceedings under the Anshun principles, which provide that where there are prior proceedings between the same parties involving the same issues, the court may stay the current proceedings to avoid duplication and inconsistency. The court also needed to consider whether the current proceedings were an abuse of process and whether the scope of the agreement giving rise to the proceedings was sufficiently distinct to warrant separate litigation.

The court found that the current proceedings were indeed an abuse of process, as they were duplicative of prior proceedings that had already determined the validity and enforceability of the sale agreement. The court held that the Anshun principles applied and that the current proceedings should be stayed until the property was sold, at which point the issues in this case could be revisited. The court also found that the respondent's costs of the motion were to be paid by the applicants.

In summary, the Federal Circuit Court stayed the proceedings in Smith v Wikramanayake until the sale of the property, applying the Anshun principles to avoid duplication and inconsistency with prior proceedings. The court further held that the current proceedings constituted an abuse of process and ordered the respondent to pay the applicants' costs of the motion.

Orders

Orders of the court

The statement of claim is stayed until such time as the facility known as ‘Lavender Lodge’ at 286 Warren Street, Lavington in Wagga is sold.

The Respondent is to pay the Applicants’ costs of the Motion on the usual basis.

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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