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Toyne v Stokes

Toyne v Stokes

Case [2022] NSWDC 292 26 July 2022

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Toyne v Stokes [2022] NSWDC 292
Hearing dates: 13 July 2022
Date of orders: 26 July 2022
Decision date: 26 July 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Dismiss the plaintiff’s Notice of Motion filed on 14 September 2021.
(2)   Strike out the Statement of Claim filed on 5 July 2021.
(3)   Grant leave to the plaintiff to file an Amended Statement of Claim by 23 August 2022.
(4)   Order the plaintiff to pay the defendant’s costs of the Notice of Motion filed on 14 September 2021.
(5)   Dismiss the defendant’s Notice of Motion filed on 10 October 2021.
(6)   Order the defendant to pay the plaintiff’s costs of the Notice of Motion filed on 10 October 2021.

Catchwords:
PROCEDURE – Contracts for sale of land – purchaser did work on land and contaminated it with asbestos – contracts terminated by vendor – Supreme Court proceedings seeking relief against forfeiture of deposits – later District Court proceedings by vendor seeking damages against purchaser for contamination of land – whether District Court proceedings were estopped by Anshun principles – whether District Court proceedings should be stayed as an abuse of process

Legislation Cited:
Conveyancing Act 1919 (NSW), s 55(2A)

Cases Cited:
Champers Life Pty Ltd v Manojlovski [2010] NSWSC 641
Cromwell v County of Sac (1876) 94 U.S. 351
Hannigan v Inghams Enterprises Pty Ltd [2021] NSWSC 641
Henderson v Henderson (1843) 67 ER 319
Jacobellis v Ohio (1963) 378 U.S. 184
Johnson v Gore Wood & Co [2002] 2 AC 1
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Stokes v Toyne [2019] NSWSC 274
Stokes v Toyne [2021] NSWSC 1049
Tanning Research v O’Brien [1990] HCA 8; (1990) 169 CLR 332
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

Category: Procedural rulings
Parties: Molly Toyne (Plaintiff)
Nathan Stokes (Defendant)
Representation:
Counsel:
M Castle and A Bailey (Plaintiff)
N Oram (Defendant)
Solicitors:
Baker Deane & Nutt (Defendant)

File Number(s): 2021/195454

Judgment

Background

In 2016 the plaintiff Ms Toyne was the vendor of land in Gundaroo and the defendant Mr Stokes was the purchaser. Between exchange and settlement Ms Toyne allowed Mr Stokes, a civil engineering contractor, to enter upon the land and perform work to make the property ready for subdivision. While on the land Mr Stokes demolished sheds which contained asbestos. The Agreements for Sale of Land were terminated by Ms Toyne and the deposits were forfeited to her.
By a Statement of Claim filed in this court on 5 July 2021 the Ms Toyne sued Mr Stokes for damages, particularised as $235,080 to remedy and remove asbestos from the plaintiff’s land and $2,500 to reinstate fences on the land.
The Statement of Claim filed on 5 July 2021 is short and quite defective. Ms Toyne filed a Notice of Motion on 14 September 2021 seeking leave to file an Amended Statement of Claim. The draft…

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 Toyne v Stokes

Details

AGLC: Toyne v Stokes [2022] NSWDC 292
Case: [2022] NSWDC 292
Decision Date: 26 July 2022

CaseChat Overview and Summary

In Toyne v Stokes, the parties were engaged in a dispute over a contract for the sale of land. The purchaser, Stokes, had conducted work on the land that led to the contamination of the property with asbestos. Following this, the vendor, Toyne, terminated the contracts and sought relief against the forfeiture of the deposits paid by Stokes in Supreme Court proceedings. Subsequently, Toyne commenced District Court proceedings against Stokes, claiming damages for the contamination of the land. The central legal issues revolved around whether the District Court proceedings were precluded by the Anshun estoppel, which would prevent Toyne from pursuing the claim due to prior proceedings in the Supreme Court, and whether the District Court proceedings should be stayed as an abuse of process.

The court examined the relationship between the proceedings in the Supreme Court and the District Court. It was determined that the Supreme Court proceedings were not precluded by the Anshun estoppel as they did not involve the same cause of action as the District Court proceedings. The court held that the Supreme Court proceedings were for relief against forfeiture of deposits, while the District Court proceedings were for damages for contamination of the land. These were distinct causes of action, and therefore, the Anshun estoppel did not apply. Furthermore, the court found that the District Court proceedings were not an abuse of process, as Toyne had a legitimate interest in seeking damages for the contamination caused by Stokes. Consequently, the court dismissed the motions filed by both parties and ordered costs in favour of Stokes.

The final orders of the court were to dismiss the plaintiff's notice of motion filed on 14 September 2021, strike out the plaintiff's statement of claim filed on 5 July 2021, and grant leave to the plaintiff to file an amended statement of claim by 23 August 2022. Additionally, the court ordered the plaintiff to pay the defendant's costs of the notice of motion filed on 14 September 2021. The court also dismissed the defendant's notice of motion filed on 10 October 2021 and ordered the defendant to pay the plaintiff's costs of that notice of motion. These orders effectively concluded the court's consideration of the procedural issues raised in the case and set the stage for any potential future claims that may be pursued by the parties.

Orders

Orders of the court

(1) Dismiss the plaintiff’s Notice of Motion filed on 14 September 2021.

(2) Strike out the Statement of Claim filed on 5 July 2021.

(3) Grant leave to the plaintiff to file an Amended Statement of Claim by 23 August 2022.

(4) Order the plaintiff to pay the defendant’s costs of the Notice of Motion filed on 14 September 2021.

(5) Dismiss the defendant’s Notice of Motion filed on 10 October 2021.

(6) Order the defendant to pay the plaintiff’s costs of the Notice of Motion filed on 10 October 2021.

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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Citations

AGLC Citation

Toyne v Stokes [2022] NSWDC 292

Most Recent Citation

Stokes v Toyne [2023] NSWCA 59

Cases citing this decision · 1 of 1 shown

Stokes v Toyne
[2023] NSWCA 59

…on v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Toyne v Stokes [2021] FedCFamC2G 148 Toyne v Stokes [2022] NSWDC 292 Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as “Uncle Bens of Aust…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Stokes v Toyne
[2021] NSWSC 1049 Para 21

…There was a second set of proceedings in the Supreme Court before Justice Rein: Stokes v Toyne [2021] NSWSC 1049. His Honour gave a decision in relation to use of the Supreme Court material in the bankruptcy proceedings. Ms White estimated that Mr Stokes incurred $27,000 in legal costs in relation to that Supreme Co…
Hannigan v Inghams Enterprises Pty Ltd
[2021] NSWSC 641 Para 47

…subject of the estoppel claim arose from the same transaction or that the two proceedings are closely related: Hannigan v Inghams Enterprises Pty Ltd [2021] NSWSC 641 at [18].…
Stokes v Toyne
[2019] NSWSC 274 Para 6

…d deposits. Those proceedings were heard by Justice Rees on 15 and 16 October 2018. Her Honour delivered judgment on 18 March 2019 – Stokes v Toyne [2019] NSWSC 274.…
UBS AG v Tyne
[2018] HCA 45 Para 2

…Abuse of process - see UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77.…
Havyn Pty Ltd v Webster
[2005] NSWCA 182

…re is ample case law as to how it should be applied. The authoritative judgment is that of Santow JA in Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182, with whom Tobias JA and Brownie AJA agreed. His Honour traversed the history of deposits as an earnest of performance and noted that the vendor’s ri…
Tanning Research laboratories Inc v O'Brien
[1990] HCA 8 Para 48

…the matter that could have been brought as a cross claim in earlier proceedings is sought to be brought subsequently. In Tanning Research v O’Brien [1990] HCA 8; (1990) 169 CLR 332 Brennan and Dawson JJ said:…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…Anshun Estoppel – see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.…
Henderson v Henderson
[1948] HCA 15

…anojlovski [2010] NSWSC 641 Cromwell v County of Sac (1876) 94 U.S. 351 Hannigan v Inghams Enterprises Pty Ltd [2021] NSWSC 641 Henderson v Henderson (1843) 67 ER 319 Jacobellis v Ohio (1963) 378 U.S. 184 Johnson v Gore Wood & Co [2002] 2 AC 1 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Stoke…
[2002] 2 AC 1
[2002] 2 AC 1 Para 64

…s a determination that requires consideration of all the circumstances”. Their Honours cited Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1 at [31] where his Lordship said that the consideration requires the court to make:…
Jacobellis v Ohio
(1964) 378 US 184 Para 67

…One is reminded of the aphorism of Justice Potter Stewart of the Supreme Court of the United States in Jacobellis v Ohio (1963) 378 U.S. 184 at 197, in which the court considered whether a motion picture was hard-core pornography. His Honour said:…
(1843) 67 ER 319
(1843) 67 ER 319 Para 38

…The High Court referred to the English decision of Henderson v Henderson (1843) 67 ER 319 where the Vice-Chancellor said:…
Terry v Permanent Trustee Australia Ltd
34 ER 106

…“(h) In Terry v Permanent Trustee Australia Ltd (1995) 6 BPR 14,091 the plaintiff sought relief under s.55(2A). The plaintiff had earlier brought proceedings for specific performance, in which no relief was sought in relation to the deposit. Those proceedings were settled by consent in favour of the defendant. In…

Legislation cited in this decision · 4

Conveyancing Act 1919 (ACT)
55(2A) 2 mentions (from Para 6)
Hay v Liverpool City Raceway Pty Ltd
1 mention
Law of Property Act 1925 c.20
1 mention
Property Law Act 1958 (Vic)
1 mention

Medium Neutral Citation:	Toyne v Stokes [2022] NSWDC 292
Hearing dates:	13 July 2022
Date of orders:	26 July 2022
Decision date:	26 July 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Dismiss the plaintiff’s Notice of Motion filed on 14 September 2021. (2) Strike out the Statement of Claim filed on 5 July 2021. (3) Grant leave to the plaintiff to file an Amended Statement of Claim by 23 August 2022. (4) Order the plaintiff to pay the defendant’s costs of the Notice of Motion filed on 14 September 2021. (5) Dismiss the defendant’s Notice of Motion filed on 10 October 2021. (6) Order the defendant to pay the plaintiff’s costs of the Notice of Motion filed on 10 October 2021.
Catchwords:	PROCEDURE – Contracts for sale of land – purchaser did work on land and contaminated it with asbestos – contracts terminated by vendor – Supreme Court proceedings seeking relief against forfeiture of deposits – later District Court proceedings by vendor seeking damages against purchaser for contamination of land – whether District Court proceedings were estopped by Anshun principles – whether District Court proceedings should be stayed as an abuse of process
Legislation Cited:	Conveyancing Act 1919 (NSW), s 55(2A)
Cases Cited:	Champers Life Pty Ltd v Manojlovski [2010] NSWSC 641 Cromwell v County of Sac (1876) 94 U.S. 351 Hannigan v Inghams Enterprises Pty Ltd [2021] NSWSC 641 Henderson v Henderson (1843) 67 ER 319 Jacobellis v Ohio (1963) 378 U.S. 184 Johnson v Gore Wood & Co [2002] 2 AC 1 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Stokes v Toyne [2019] NSWSC 274 Stokes v Toyne [2021] NSWSC 1049 Tanning Research v O’Brien [1990] HCA 8; (1990) 169 CLR 332 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
Category:	Procedural rulings
Parties:	Molly Toyne (Plaintiff) Nathan Stokes (Defendant)
Representation:	Counsel: M Castle and A Bailey (Plaintiff) N Oram (Defendant) Solicitors: Baker Deane & Nutt (Defendant)
File Number(s):	2021/195454