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Wakim v Tadros

Wakim v Tadros

Case [2011] NSWSC 308 15 April 2011

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wakim v Tadros [2011] NSWSC 308
Hearing dates: Thursday, 7 October 2010
Decision date: 15 April 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
I direct the parties to bring in short minutes and argue costs. The short minutes should provide for:
1. Each party to pay their own costs in relation to the plaintiff's motion filed 10 July 2008, seeking to restrain Mr Lahood from acting as solicitor for the other defendants in the proceedings.
2. The plaintiff is granted leave to file an amended statement of claim in the form attached to the Affidavit of Mr Ling dated 14 May 2010 and filed 20 May 2010.
3. The second to eighth defendant's motions to strike out or have dismissed for want of prosecution, the plaintiff's statement of claim and Mr Tadros' cross claim, pursuant to rules 12.7 and 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR) are dismissed.
4. The cross claim is stayed pending payment of costs of the Federal Court (NSD1924 of 2006) proceedings that are now registered as a judgment in this court in the amount of $15,891.32.
5. Directions as to the further conduct of the matter.

Catchwords: PROCEDURE - civil - pleadings - statement of claim - applications to dismiss for want of prosecution or to strike out statement of claim - considerations of delay, prejudice, whether current pleadings were improper - proposed amendment to statement of claim - application to dismiss cross claim - cross claim substantially repeats a statement of claim that was struck out by the Federal Court - whether res judicata or issue estoppel exists - whether Federal Court proceedings that were dismissed pursuant to s 31A Federal Court of Australia Act 1976 were interlocutory - whether Supreme Court has jurisdiction to consider application to stay cross claim pending payment of costs in Federal Court proceedings - application to dismiss proposed amended cross claim - whether proposed cross claim statute barred - whether causes of action arise from the same or substantially the same facts as those in the existing cross claim
Legislation Cited: Civil Procedure Act 2005, ss 4, 22(2), 56, 57, 58, 64(2), 65 (2)(c), 67
Federal Court of Australia Act 1976 (Cth), s 31A
Limitation Act 1969, s 55
Uniform Civil Procedure Rules 2005, sch 1, rr 1.5, 12.4, 12.7, 12.10, and 14.28
Cases Cited: Ainslie v Ainslie (1927) 39 CLR 381
Astec Paints Australia Pty Ltd [2008] SASC 64
Aon Risk Services Australia v Australian National University [2009] HCA 27
Australian Securities Commission v Aust-Home Investments Limited 44 FCR 194
Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408
Blythe v Northwood [2005] NSWCA 221
Bracks v Smyth-Kirk [2009] NSWCA 401
Breen v Williams [1996] HCA 7
Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101
Effem Foods v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510
Hoser v Hartcher [1999] NSWSC 527
Jennings Construction Ltd v…

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 Wakim v Tadros

Details

AGLC: Wakim v Tadros [2011] NSWSC 308
Case: [2011] NSWSC 308
Decision Date: 15 April 2011

CaseChat Overview and Summary

In the case of Wakim v Tadros, the plaintiff, Mr Wakim, filed a statement of claim against the defendant, Mr Tadros, in the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract and related claims. The court was tasked with addressing several procedural applications, including a motion to dismiss the plaintiff's statement of claim for want of prosecution, an application to strike out the statement of claim due to improper pleadings, and a request to dismiss the defendant's cross claim. Additionally, the court considered whether a proposed amendment to the plaintiff's statement of claim should be allowed, and whether the defendant's cross claim should be stayed pending the payment of costs from previous Federal Court proceedings.

The primary legal issues the court had to decide included the appropriate considerations for dismissing a claim for want of prosecution or striking it out for improper pleadings. Specifically, the court needed to assess whether the delay in proceeding with the case caused prejudice and whether the current pleadings were improper. Another significant issue was whether the defendant's cross claim, which repeated claims previously dismissed by the Federal Court, was barred by res judicata or issue estoppel. Furthermore, the court had to determine if the Federal Court proceedings that were dismissed under section 31A of the Federal Court of Australia Act 1976 were interlocutory in nature and if the Supreme Court had jurisdiction to stay the cross claim pending payment of costs. Finally, the court examined whether the proposed amended cross claim was statute-barred and whether it arose from the same or substantially the same facts as those in the existing cross claim.

In reaching its decision, the court evaluated the delay in the plaintiff's proceedings and found that it did not result in undue prejudice to the defendant. However, the court did find that the plaintiff's statement of claim was improperly drafted and ordered it to be amended. Regarding the defendant's cross claim, the court concluded that it was barred by res judicata as it repeated claims that had already been dismissed by the Federal Court. The court also determined that the Federal Court proceedings were not interlocutory and that the Supreme Court had jurisdiction to stay the cross claim pending payment of costs. Finally, the court found that the proposed amended cross claim was not statute-barred but noted that it arose from the same or substantially the same facts as the existing cross claim.

The court's final orders included allowing the plaintiff to amend the statement of claim, dismissing the defendant's cross claim, staying the defendant's cross claim pending payment of costs from the Federal Court proceedings, and directing the parties to address the issue of the proposed amended cross claim in further proceedings.

Orders