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Sywak v Visnic

Sywak v Visnic

Case [2010] NSWSC 222 5 March 2010

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CITATION: Sywak v Visnic [2010] NSWSC 222

HEARING DATE(S): 7 August 2009 & 4 September 2000

JUDGMENT DATE :
5 March 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: Paragraphs 2 and 3 of the defendant's amended notice of motion dismissed.

CATCHWORDS: EQUITY - general principles - equitable doctrines and presumptions - application for permanent stay of proceedings - cause of action estoppel alleged arising out of findings in prior proceedings - Port of Melbourne Authority v Anshun (1981) 147 CLR 589 estoppel alleged - abuse of process alleged - subject matter of the current proceedings not raised in the prior proceedings - different causes of action in the two proceedings subject matter relied upon in the current proceedings not so relevant to the subject matter of the prior proceedings that it would have been unreasonable not to rely upon it in the prior proceedings - no inconsistency in judgments likely between the current proceedings and prior proceedings - no abuse of process - application dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 46
Civil Procedure Act 2005 (NSW) s 67

CATEGORY: Principal judgment

CASES CITED: Batistatos v Roads and Traffic Authority (NSW); Batistatos v Newcastle City Council [2006] HCA 27
Brunsden v Humphrey (1884) 14 QBD 141
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Hunter v The Chief Constable of the West Midlands Police (1982) AC 529
Milan Visnic v Peter Sywak [2007] NSWSC 701
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204
Ramsay v Pegram (1968) 118 CLR 271
Reichel v Magrath (1889) 14 AppCas 665
Trawl Industries of Australia Pty Limited (In liquidation) and Others v Effem Foods Pty Limited (1992) 36 FCR 406
Visnic v Sywak & Ors [2007] NSWSC 701
Visnic v Sywak & Ors [2008] NSWSC 427
Visnic v Sywak [2009] NSWCA 173

PARTIES: Plaintiff: Peter Orest Sywak
Defendant: Milan Visnic

FILE NUMBER(S): SC 1146/09

COUNSEL: Plaintiff: Mr H Stitt
Defendant: Mr A Street SC & Mr R Carruthers

SOLICITORS: Plaintiff: Polczynski Lawyers
Defendant: Lander & Rogers Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 5 MARCH 2010

1146/09 PETER OREST SYWAK v MILAN VISNIC

JUDGMENT

1 HIS HONOUR: Late in 1999 Milan Visnic lost confidence in his accountant, Peter Sywak. Mr Sywak had failed to honour an arrangement they made in the mid 1990s. Mr Sywak had undertaken to hold shares in four companies on trust for Mr Visnic. Contrary to their prior arrangement Mr Sywak asserted from 1999 that the shares were his own and were not held on trust. Mr Visnic initiated action in the Supreme Court to vindicate his claim to these shares. He was successful in this in a hearing before Brereton J in 2007. He failed in other proceedings for consequential relief before his Honour in 2008 and…

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 Sywak v Visnic

Details

AGLC: Sywak v Visnic [2010] NSWSC 222
Case: [2010] NSWSC 222
Decision Date: 5 March 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Sywak v Visnic involved a dispute between the parties regarding an application for a permanent stay of proceedings based on cause of action estoppel. The applicant, Sywak, sought to have the current proceedings permanently stayed on the basis that the cause of action had been decided in prior proceedings. The respondents, Visnic, opposed the application, arguing that the current proceedings involved different causes of action and subject matter compared to the prior proceedings. The case required the court to determine whether the principles of Port of Melbourne Authority v Anshun applied, and if the current proceedings constituted an abuse of process.

The court examined the nature of the subject matter and causes of action in both sets of proceedings. It considered whether the subject matter of the current proceedings was so closely related to the prior proceedings that it would have been unreasonable for the applicant not to raise it in the earlier litigation. The court also assessed whether there was a likelihood of inconsistency in judgments between the current and prior proceedings. Furthermore, the court addressed whether the current proceedings amounted to an abuse of process. The court found that the subject matter of the current proceedings was not so relevant to the prior proceedings that it would have been unreasonable for the applicant not to raise it in the earlier litigation. There was no likelihood of inconsistency in judgments between the two sets of proceedings. The court also concluded that the current proceedings did not amount to an abuse of process.

Consequently, the court dismissed the application for a permanent stay of proceedings. The principles of Port of Melbourne Authority v Anshun did not apply in this case, as the subject matter and causes of action in the current proceedings were sufficiently distinct from those in the prior proceedings. The court found that the applicant had not demonstrated a valid ground for a permanent stay of proceedings, and the application was dismissed without any orders for costs.

Orders