Susan Triglone v Jean Boyce Greenslade

[2008] NSWDC 218

CITATION:	Susan Triglone v Jean Boyce Greenslade [2008] NSWDC 218
HEARING DATE(S):	10/9/08
EX TEMPORE JUDGMENT DATE:	10 September 2008
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	Judgment for the plaintiff against the defendant in the amount of $61,484.21.
CATCHWORDS:	Satisfaction of Common Obligation by one of two joint debtors - Claim for Contribution against Co-debtor - Defence of Res Judicata - Defence of issue estoppel - Consideration of Anshun estoppel and defence alleging abuse of process by plaintiff
CASES CITED:	Muschinski v Dodds (1984-85) 160 CLR 583 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Blair v Curran (1939) 62 CLR 464 at 532 Rippon v Chilcotin Pty Limited & Ors (2001) 53 NSWLR 198 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414
PARTIES:	Susan Triglone (Plaintiff) Jean Boyce Greenslade (Defendant)
FILE NUMBER(S):	1879/07
COUNSEL:	D Ash (Plaintiff) N O'Brart (Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Susan Margaret Triglone, brings a claim against the defendant arising out of the fact that, in July 1999, the plaintiff and the defendant entered into an agreement with the National Australia Bank Limited, which I shall refer to as ‘the Bank,’ for the Bank to lend money to both of them. The Bank documentation is annexed to the plaintiff’s affidavit which is exhibit A in these proceedings. It is clear on the face of the Bank documentation that one of the facilities through which the Bank would lend money to the parties was by way of an overdraft styled “Susan Margaret Triglone and Jean Boyce Greenslade trading as Jeanelle’s Shoe Imports”.

2 It is clear on the face of the Bank documentation that both the plaintiff and the defendant were jointly and severally liable to the Bank for all principal, interest, costs and expenses drawn down as a consequence of the loan facility being afforded to them.

3 On 25 February 2003 the plaintiff paid the Bank an amount of $81,140.14 being the amount then owed by both the plaintiff and the defendant to the Bank under the facility that it had provided to both of them. That payment discharged the indebtedness that the plaintiff and the defendant had to the Bank.

4 In these proceedings the plaintiff seeks contribution from the defendant for payment of half the amount that the plaintiff paid to the Bank on 25 February 2003. The plaintiff pleads her case on the basis that she satisfied a common obligation of the parties, namely a debt, that she paid more than her proportionate share of that common obligation, that is to say, she paid 100% of the debt and not just 50% of it, and she is entitled at law or in equity to an equal contribution from the defendant. The plaintiff also claims costs and interest.

5 There is no doubt that such a claim on its face can be made. Mr Ash, who appears for the plaintiff, helpfully referred me to the High Court’s decision in Muschinski v Dodds (1984-85) 160 CLR 583. At p 596 Chief Justice Gibbs refers to the parties in that case being under a common obligation to pay a debt and said that the case therefore fell within the general principle, applicable both in law and in equity, which obliged the parties to bear the burden equally, with the consequence that if one discharged more than his or her proper share, he or she could call upon the other for contribution. The Chief Justice referred in particular to a statement to that effect in Chitty on Contracts (General Principles) 25th edition (1983) at para .1213. (I do not have any need to set it out). The Chief Justice added, at p 597, that it was unnecessary in that case to discuss whether the right was quasi contractual or based on equitable principles.

6 In these proceedings, the defence that has been filed admits that the defendant signed the Bank’s documentation. The case is about what is pleaded in para 11 of the amended defence, in which the defendant says, in respect of the whole of the statement of claim, that it constitutes an abuse of the court’s process and the plaintiff is estopped from pursuing her claim in these proceedings. The particulars under para 11 state that ‘the abuse of process and estoppel arises from Local Court proceedings 2209/02 and the judgment dated 19 March 2004”.

7 The Local Court proceedings concerned a claim by a third party for money said to be owing by both defendants to him. The third party was the husband of the plaintiff in the current proceedings. The plaintiff in the current proceedings was a defendant. The defendant in the current proceedings was a co-defendant.

8 The learned Magistrate’s judgment is part of the annexures to the affidavit of Ms Harvey made on 16 August 2007, exhibit 1. In her judgment the learned Magistrate said that the issues to be determined were,

“1. Before May 2000 was there a partnership between Jean Greenslade and Susan Triglone.

2. Did the plaintiff loan the $30,000 to a partnership.

3. Are the second and third defendants jointly and severally liable to the plaintiff for the $30,000.”

(The second defendant was Ms Greenslade, the third defendant was Ms Triglone).

9 The learned Magistrate concluded, with regard to the first issue - and I am reading from page 19 of exhibit 1:

“On the basis of the evidence and after a consideration of it, the plaintiff in this case has not satisfied the court on the balance of probabilities that a partnership existed between the second and third defendant.”

10 On the second issue, the Magistrate determined that the court could not be satisfied that the transfer of money which had occurred in that case was a loan to Jeanelle’s Shoe Imports which she abbreviated using the letters ‘JSI’ in her judgment.

11 The conclusion the learned Magistrate reached on the third issue was that the second and third defendants could not be said to be jointly and severally liable.

12 In these proceedings, Ms O’Brart appeared for the defendant. She made a number of submissions, the first of which was that there was a res judicata estoppel which prevented the plaintiff from pursuing the claim in these proceedings. The res judicata estoppel was said to have arisen from the Magistrate’s decision in the lower court. I cannot see how there is any possibility of there being a res judicata estoppel because there was no final determination made in the proceedings before Magistrate Fleming relating to the plaintiff’s liability to the Bank. That therefore disposes of the res judicata point.

13 The second submission made by Ms O’Brart was that there was an issue estoppel. I have some difficulty understanding this submission. Ms O’Brart referred to there being inferences which could arise from matters determined by the Magistrate which somehow or other involved a re-litigation in this court of those matters. The point was that in the Local Court the issue was whether there was a partnership as at 4 May 2000. That is what the Magistrate was dealing with.

14 There is no question in the proceedings in this court as to whether or not there was a partnership between the parties. There was a joint and several debt. The issue in this case is whether there is any basis upon which the defendant can resist having to make an equal contribution to that which the plaintiff has already made in extinguishing the debt owed to the Bank.

15 The fact that there is a reference in the Magistrate’s judgment to the defendant not having a cheque book and such other matters does not take this issue any further. The defendant in this case has not adduced any evidence which might go to the question of whether there is a basis upon which the right of contribution should be displaced somehow or other. There being no evidence of that, I cannot see how the evidence before the Local Court is of any relevance to what I have to deal with on this specific issue.

16 As Mr Ash correctly pointed out, to the extent that there is a reference in the Magistrate’s judgment to operations on the bank account, those matters are simply statements of what the evidence disclosed. At its highest, the Magistrate was weighing that up somehow or other and taking it into account perhaps in terms of her final determination of the issue as to whether or not there was a partnership, but it seems to me there was no specific fact finding that emerged with regard to the bank account itself.

17 The next submission made by Ms O’Brart was that there was an Anshun estoppel. That is based on a decision of the High Court in the Port of Melbourne Authority v Anshun (1981) 147 CLR 589. I interpolate here that at page 597 in that case the majority referred to the distinction between res judicata and issue estoppel, and referred in that context to Dixon, J’s statement in Blair v Curran 1939 62 CLR 464 at 532. Mr Ash correctly relied on what was said there to point out, as I have already determined, that there was no judgment or final determination made in the Local Court proceedings against his client on the cause of action pleaded in this court, which is why I rejected the res judicata defence.

18 The issue estoppel point is encapsulated in what Dixon J said in Blair v Curran, namely, that it goes to whether or not an issue of fact or law is alleged or denied, the existence of which is a matter necessarily decided by a prior judgment, decree or order.

19 In terms of the submissions made by Ms O’Brart, she relies on what is set out at p 602 of the joint judgment in Anshun. To put it into its current context, Ms O'Brart’s submission means that her client has to establish that the matters relied on by the plaintiff in her claim in this Court were so relevant to the matters raised in the Local Court proceedings determined by Magistrate Fleming that it was unreasonable for the plaintiff in these proceedings not to have brought that claim in the Local Court proceedings. Again, I have difficulty seeing that there was something that ought to have been litigated in the Local Court proceedings referable to the Bank’s debt, because the claim in this court is not based on any partnership. As Mr Ash submitted, if some sort of a claim had been pleaded by his client in the Local Court proceedings in the nature of a partnership dispute, that would have left the plaintiff in the Local Court proceedings in a most unsatisfactory situation. A third party in those circumstances should not be required to be caught up in some sort of a partnership dispute between other parties.

20 In my opinion, it was not unreasonable for the plaintiff in this case not to have brought her claim in these proceedings in the Local Court for that reason. But there is a another reason; and that is that the plaintiff’s claim in this case arises out of a payment that was made on 25 February 2003. So the plaintiff’s cause of action against the defendant in these proceedings could not have arisen before that date. The court has been informed by both counsel that the Local Court proceedings were instituted some years before 25 February 2003. Before the payment was made by the plaintiff to the Bank on 25 February 2003 the Local Court proceedings had been listed for arbitration. True it is that the arbitration was not disposed of until after the payment was made to the Bank; nevertheless, in those circumstances, I do not think it can really be suggested that the plaintiff in this case should have done something at an earlier point in time in the Local Court proceedings. That would have caused a considerable interruption to what was happening in that court.

21 There is also the question as to whether, if the plaintiff anticipated that some sort of equitable defences were going to be raised, as has been intimated by Ms O'Brart, the plaintiff would in any event simply have commenced these proceedings in the District Court immediately and left it to the defendant to try to convince someone that the two sets of proceedings ought to have been consolidated. In short I do not think, as a practical matter, it can really be suggested that the issue in this court should have been litigated in the Local Court. So, for all those reasons, the Anshun point is not made out.

22 It was finally submitted that these proceedings constituted an abuse of process. Reliance was placed by Ms O’Brart on the decision of the New South Wales Court of Appeal in Rippon v Chilcotin Pty Limited & Ors (2001) 53 NSWLR 198.

23 Rippon’s case concerned the question of abuse of process and Anshun estoppel in proceedings where not all of the parties had been involved in earlier proceedings. What is relevant, in terms of what I have to deal with, is the citation from the judgment of Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414, which is set out in para 31 of the Rippon case. Hunt CJ at CL said there were obvious limitations to striking out pleadings or causes of action as an abuse of process. His Honour referred specifically to ‘the issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former.’

24 The plaintiff did not lose in the proceedings in the Local Court anything that she is propounding before the District Court in these proceedings today. Accordingly, there has been no abuse of process.

25 The defendant’s defences therefore fail and there will be a verdict for the plaintiff against the defendant in the amount of $40,570.07.

26 Under the rules of court the plaintiff is entitled to interest on the amount of $40,570.07 from 26 February 2003 to date.

27 I order the defendant to pay the plaintiff’s costs of the proceedings, such costs to be agreed or assessed.

28 I direct the exhibits be returned.

29 With regard to the order for costs that I made a moment ago, I want to make it clear that, because of the complications involved in this case in terms of the legal arguments that have been put to the court, I consider that it was appropriate for the matter to be dealt with in the District Court in the first place. It has not been submitted by counsel for the defendant that the costs should somehow or other be scaled down, and it is appropriate for her not to have made that submission. I have made these comments for the guidance of the costs assessor if any question might arise in his or her mind about that matter.

30 I am told that the amount of interest that has accrued between 26 February 2003 to date under the rules of court is $20,914.14. That being so, on top of the verdict, I order the defendant to pay the plaintiff the amount of $20,914.14.

31 In the result, there will be a judgment for the plaintiff against the defendant in the amount of $61,484.21.

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