Virtual Technologies International Ltd v Gye - [2010] NSWSC 399

CITATION: Virtual v Gye [2010] NSWSC 399

HEARING DATE(S): 04/05/2010

JUDGMENT DATE :
4 May 2010

JURISDICTION: Equity Divison

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 4 May 2010

DECISION: Accordingly, I dismiss the proceedings with costs on the indemnity basis.

CATCHWORDS: Corporations Law. Application to set aside demand which was based upon a judgment debt. No application to set aside default judgment and no stay. Only matters raised were res judicata between the parties. Proceedings dismissed.

PARTIES: Virtual Technologies International Limited v Clement Anthony Gye trading as Gye Associates Lawyers

FILE NUMBER(S): SC 30783/2010

COUNSEL:
Mr P Gallo for defendant

SOLICITORS: Mr S Velik of SV Law for plaintiff
Gye Associates Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 4 MAY 2010

10/30783 - VIRTUAL TECHNOLOGIES INTERNATIONAL LIMITED v CLEMENT ANTHONY GYE

1 HIS HONOUR: This is an application to set aside a statutory demand which was served upon the plaintiff by the defendant. The defendant obtained default judgment in the Local Court in the sum of $32,025.50. The plaintiff filed an originating process on 3 February 2010 and seeks to rely on s 459 G and H of the Corporations Act.

2 It is apparent that the claim is really a claim of a genuine dispute as to the existence or quantum of the debt. The background facts are as follows. In August 2007 the plaintiff instructed the defendant to obtain legal advice and searches in a number of matters. On 17 December 2007 copies of accounts for legal costs were provided and on 30 May 2008 accounts were provided that complied, it is said, with s 333 of the Legal Profession Act. Proceedings were commenced in the Local Court on 10 July 2008 to recover $36,532.66. An amended statement of claim was served on 1 August 2008 and particulars were sought of that by the defendant.

3 In September the plaintiff sought more detailed particulars and the provision of an itemised bill. That bill was provided on 10 June 2009. A further amended statement of claim was served on 4 August 2009 and there was no response to correspondence thereafter. There was a warning that default judgment would be signed and on 30 November 2009 the defendant filed a notice of motion for default judgment. Default judgment was entered on 15 December 2009.

4 On 13 January 2010 the statutory demand for payment in accordance with the judgment was served on the defendant. As I have said, the originating process was served on 3 February 2010.

5 It is apparent from the affidavits, particularly the affidavit of Mr Wiltshire of 12 April 2010, that what the plaintiff seeks is to challenge the claim which is now the subject of the judgment. For instance, it refers to deficiency in particularisation of judgment debt claims, failure to mark up the statement of claim, that costs the subject of the judgment were not reasonably…

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 Virtual Technologies International Ltd v Gye

Details

AGLC: Virtual v Gye [2010] NSWSC 399
Case: [2010] NSWSC 399
Decision Date: 4 May 2010

CaseChat Overview and Summary

The case of Virtual Technologies International Ltd v Gye was heard by the court, with Virtual Technologies International Ltd, the plaintiff, seeking to set aside a demand for a judgment debt. The defendant, Gye, did not apply to set aside the default judgment nor sought a stay of the proceedings. The only issues raised were those of res judicata between the parties. The court had to determine whether the proceedings could be dismissed on the basis of the res judicata principle.

The primary legal issue before the court was whether the proceedings could be dismissed due to the principle of res judicata, which essentially means that a matter between the same parties on the same cause of action cannot be litigated again. The court examined whether the previous judgment had conclusively determined the rights and liabilities of the parties in relation to the subject matter of the current proceedings.

The court concluded that the previous judgment had indeed determined the rights and liabilities of the parties, and thus the principle of res judicata applied. The court held that since the defendant had not challenged the default judgment or sought a stay, and no other grounds for setting aside the demand were presented, the proceedings were properly dismissed. The court found that the matter had already been conclusively decided by a competent court and therefore could not be re-litigated.

Accordingly, the court dismissed the proceedings. The dismissal was based on the principle that the previous judgment was final and conclusive on the issues between the parties, and no other grounds for setting aside the demand had been presented.

Orders