Zavodnyik v Alex Constructions Pty Ltd

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.