Cao v Yu & Anor [2016] NSWDC 296

Cao v Yu & Anor [2016] NSWDC 296

The claimed estoppel did not arise because Mr Yu was not a relevant party to the prior defamation proceedings, his participation was only as a witness and as the recipient of a non-party costs order, the parties and causes of action were different, and there was no sound evidence that the same matters or questions had already been contested and quelled between the parties. Accordingly, the application for dismissal or strike out failed.

Jurisdiction
Australia
Judgment Date
14 November 2016
Procedural Posture
Civil Proceedings Involving Alleged Professional Negligence, Breach of Contract and Deceit / Interlocutory Notice of Motion by the Second Defendant Seeking Dismissal or Strike Out Pursuant to UCPR R 13.4 and R 14.28
Outcome
The second defendant applicant's amended notice of motion seeking dismissal or alternatively strike out was dismissed, with costs payable to the plaintiff respondent.
Legal Topics
['dismissal of Proceedings' 'strike Out' 'res Judicata' 'anshun Estoppel' 'non Party Costs Order']
['civil Procedure' 'estoppel' 'professional Negligence' 'contract' 'deceit'] ['dismissal of Proceedings' 'strike Out' 'res Judicata' 'anshun Estoppel' 'non Party Costs Order']

Case Brief

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Procedural Posture

Civil Proceedings Involving Alleged Professional Negligence, Breach of Contract and Deceit / Interlocutory Notice of Motion by the Second Defendant Seeking Dismissal or Strike Out Pursuant to UCPR R 13.4 and R 14.28

Legal Issues

  1. 1 ['Whether principles of estoppel precluded the plaintiff from maintaining the present proceedings against the second defendant applicant, Mr Yu.' 'Whether the proceedings should be dismissed under UCPR r 13.4 or struck out under UCPR r 14.28.']

Ratio Decidendi

The claimed estoppel did not arise because Mr Yu was not a relevant party to the prior defamation proceedings, his participation was only as a witness and as the recipient of a non-party costs order, the parties and causes of action were different, and there was no sound evidence that the same matters or questions had already been contested and quelled between the parties. Accordingly, the application for dismissal or strike out failed.

Court Disposition

The second defendant applicant's amended notice of motion seeking dismissal or alternatively strike out was dismissed, with costs payable to the plaintiff respondent.

Orders

  • ['The notice of motion filed by the second defendant applicant on 26 August 2016, as amended, seeking dismissal or alternatively striking out of the proceedings, pursuant to UCPR r 13.4 and r 14.28, is dismissed;' "The second defendant applicant is to pay the plaintiff respondent's costs of the dismissed motion;"...