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Zeene v Zeene (No. 2)

Zeene v Zeene (No. 2)

Case [2015] NSWSC 1151 4 August 2015

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Zeene v Zeene (No. 2) [2015] NSWSC 1151
Hearing dates: 4 August 2015
Decision date: 04 August 2015
Jurisdiction: Equity
Before: White J
Decision:
1. Order that the defendant’s notice of motion be dismissed.
2. Order that the defendant pay the plaintiff's costs of the defendant's notice of motion, such costs not to include costs that would have been incurred in the proceeding in any event.

Catchwords:
PRACTICE AND PROCEDURE – application for summary dismissal – res judicata – Anshun estoppel – setting aside consent orders – plaintiff previously sought to have consent orders in an earlier proceeding set aside by way of notice of motion – notice of motion was dismissed – whether dismissal of notice of motion was a dismissal on the merits - plaintiff commenced current proceeding seeking to have those consent orders and the underlying contracts set aside – whether it was unreasonable not to seek to have the underlying contracts set aside in the earlier notice of motion – whether defence of res judicata or Anshun estoppel bound to succeed – application dismissed
PRACTICE AND PROCEDURE – application for a stay pending satisfaction of a costs order in a related proceeding – applicant has not yet sought an assessment of those costs – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ainsworth v Wilding [1896] 1 Ch 673
Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Harvey v Phillips (1956) 95 CLR 235
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601
Phillips v Walsh (1990) 20 NSWLR 206 at 209-210; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
The Sennar (No 2) [1985] 1 WLR 490
Thoday v Thoday [1964] P 181
Zeene v Zeene; unreported, Supreme Court of New South Wales, Young AJ, 22 February 2015
Category: Procedural and other rulings
Parties: Cherylyn Tonia Zeene (also known as Cherylyn Tonia Dean) (Plaintiff)
Peter Elias Zeene (Defendant)
Representation:
Counsel:
B Adam (Plaintiff)
A Vernier (Defendant)
Solicitors:
The People’s Solicitors (Plaintiff)
Morgan Ardino & Co (Defendant)

File Number(s): 2015/80375

Judgment

HIS HONOUR: The primary relief sought on this application is an order that the proceedings be summarily dismissed. Paragraph one of the defendant's notice of motion seeks an order that “the Statement of Claim filed on 2 April 2015 be dismissed based on Anshun estoppel…

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 Zeene v Zeene (No. 2)

Details

AGLC: Zeene v Zeene (No. 2) [2015] NSWSC 1151
Case: [2015] NSWSC 1151
Decision Date: 04 August 2015

CaseChat Overview and Summary

In the case of Zeene v Zeene (No. 2), the parties were involved in a complex dispute over the validity of certain consent orders and underlying contracts. The matter was before the Supreme Court of New South Wales, which was asked to determine several significant legal issues. The court was required to consider whether the dismissal of a notice of motion in an earlier proceeding constituted a dismissal on the merits, thereby invoking the principles of res judicata or Anshun estoppel. The plaintiff had previously sought to set aside consent orders in an earlier proceeding but was unsuccessful, and now sought to challenge those same orders and contracts in the current proceeding. The court needed to decide whether it was unreasonable for the plaintiff not to have sought to set aside the underlying contracts in the earlier proceeding and whether the defences of res judicata or Anshun estoppel should succeed.

The court found that the dismissal of the notice of motion in the earlier proceeding was indeed a dismissal on the merits, as it was based on the merits of the application. However, the court held that it was not unreasonable for the plaintiff not to have sought to set aside the underlying contracts in the earlier proceeding, given the specific grounds for relief sought at that time. The court also found that the defences of res judicata and Anshun estoppel did not bind to succeed, as the current proceeding raised distinct issues not considered in the earlier proceeding. Consequently, the application to set aside the consent orders was dismissed.

In addition, the applicant had sought a stay of the proceedings pending satisfaction of a costs order in a related matter. However, the applicant had not yet sought an assessment of those costs. The court found that the applicant had not demonstrated sufficient grounds to warrant a stay, and therefore, the application was refused.

Orders