Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438
HEARING DATE(S):
28 June 2005
JUDGMENT DATE:
9 December 2005
JUDGMENT OF:
Mason P at 1; Handley JA at 2; Latham J at 41
DECISION:
1. Appeal allowed with costs.; 2. Orders of the District Court of 28 June 2004 set aside.; 3. In lieu thereof order that District Court action No 5980 of 2003 be summarily dismissed and that there be judgment for the defendants in the action with costs.; 4. The plaintiff is to pay the defendants’ costs of the notice of motion of 16 March 2004.; 5. The respondent is to have a certificate under the Suitors’ Fund Act for the costs of the appeal, if qualified.
CATCHWORDS:
BUILDING CONTRACTS – unlicensed builder – contract and restitution alternative and inconsistent remedies – judgment for proprietor in contract – cause of action estoppel against builder’s claim in restitution - RES JUDICATA – cause of action estoppel – contract and restitution alternative and inconsistent remedies – judgment for defendant in contract – cause of action estoppel against claim in restitution - RES JUDICATA – Anshun estoppel – later proceedings based on same matrix of fact barred - RESTITUTION – building work – claims in contract and restitution – alternative and inconsistent remedies - D
John Zavodnyik (First Appellant) Hanka Zavodnyik (Second Appellant) Graviplex Pty Ltd (Third Appellant) Alex Constructions Pty Ltd (Respondent)
FILE NUMBER(S):
CA 40553 of 2004
COUNSEL:
J Simpkins SC/T Davie (Appellants) E Olsson SC/E Muston (Respondent)
SOLICITORS:
Colin Biggers & Paisley (Appellants) Massey Bailey (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 5980 of 2003
LOWER COURTJUDICIAL OFFICER:
Quirk DCJ
CA 40553/04
MASON P HANDLEY JA LATHAM J
9 DECEMBER 2005
JOHN ZAVODNYIK & ORS v ALEX CONSTRUCTIONS PTY LTD
CATCHWORDS
BUILDING CONTRACTS – unlicensed builder – contract and restitution alternative and inconsistent remedies – judgment for proprietor in contract – cause of action estoppel against builder’s claim in restitution
RES JUDICATA – cause of action estoppel – contract and restitution alternative and inconsistent remedies – judgment for defendant in contract – cause of action estoppel against claim in restitution
RES JUDICATA – Anshun estoppel – later proceedings based on same matrix of fact barred
RESTITUTION – building work – claims in contract and restitution – alternative and inconsistent remedies
FACTS
The respondent sued the appellant for $698,711 in the…
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.
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AGLC
Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438
Case
[2005] NSWCA 438
Decision Date
CaseChat Overview and Summary
The case of *Zavodnyik v Alex Constructions Pty Ltd* was heard in the Court of Appeal of New South Wales. The dispute concerned a building contract, where the proprietor, Alex Constructions Pty Ltd, had obtained judgment against the builder, Mr Zavodnyik, in contract. Mr Zavodnyik subsequently sought to bring a claim in restitution for work performed under the same contract.
The primary legal issue before the Court of Appeal was whether Mr Zavodnyik was estopped from pursuing his claim in restitution, given the prior judgment in contract. This involved considering the principles of cause of action estoppel and *Anshun* estoppel, particularly in circumstances where the remedies sought in contract and restitution are considered alternative and inconsistent.
The Court of Appeal held that Mr Zavodnyik was indeed estopped from pursuing his claim in restitution. The court reasoned that the prior judgment in contract, which found in favour of the proprietor, had determined the rights and liabilities of the parties in relation to the building work. To allow a subsequent claim in restitution would permit Mr Zavodnyik to relitigate the same underlying dispute, albeit under a different legal theory, which is contrary to the principles of *res judicata*. The court found that the claims in contract and restitution were inconsistent, and the proprietor's success in the contract claim meant that Mr Zavodnyik could not pursue the alternative restitutionary claim.
Consequently, the Court of Appeal allowed the appeal, setting aside the orders of the District Court. In their place, the court ordered that Mr Zavodnyik's action be summarily dismissed and that judgment be entered for the defendants (Alex Constructions Pty Ltd) with costs. Mr Zavodnyik was also ordered to pay the defendants' costs of a prior notice of motion, and the respondent was granted a certificate under the Suitors’ Fund Act for the costs of the appeal.
Orders
Orders of the court
1. Appeal allowed with costs.; 2. Orders of the District Court of 28 June 2004 set aside.; 3. In lieu thereof order that District Court action No 5980 of 2003 be summarily dismissed and that there be judgment for the defendants in the action with costs.; 4. The plaintiff is to pay the defendants’ costs of the notice of motion of 16 March 2004.; 5. The respondent is to have a certificate under the Suitors’ Fund Act for the costs of the appeal, if qualified.