Harris for and on behalf of the estate of Harris and Harris v Rapisarda [2019] NSWSC 1088

Harris for and on behalf of the estate of Harris and Harris v Rapisarda [2019] NSWSC 1088

The plaintiff is not estopped from bringing these proceedings and the proceedings do not constitute an abuse of process because the Architects were not parties to the earlier proceedings, no inconsistent findings are sought, and it was not unreasonable for the plaintiff not to have joined the Architects in the previous litigation.

Jurisdiction
Australia
Judgment Date
22 August 2019
Procedural Posture
Strike Out Application / Application to Strike Out/dismiss/stay Proceedings
Outcome
Strike out application dismissed
Legal Topics
['estoppel' 'anshun Estoppel' 'abuse of Process' 'striking Out Pleadings']
['civil Procedure' 'equity'] ['estoppel' 'anshun Estoppel' 'abuse of Process' 'striking Out Pleadings']

Case Brief

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Procedural Posture

Strike Out Application / Application to Strike Out/dismiss/stay Proceedings

Legal Issues

  1. 1 ['Whether the plaintiff is estopped from bringing the proceedings by reason of Anshun estoppel' 'Whether the proceedings constitute an abuse of process' 'Whether certain paragraphs of the Technology & Construction List Statement should be struck out as embarrassing']

Ratio Decidendi

The plaintiff is not estopped from bringing these proceedings and the proceedings do not constitute an abuse of process because the Architects were not parties to the earlier proceedings, no inconsistent findings are sought, and it was not unreasonable for the plaintiff not to have joined the Architects in the previous litigation.

Court Disposition

Strike out application dismissed

Orders

  • ["The defendants' Notice of Motion filed on 5 August 2019 is, so far as concerns the relief sought in paragraphs 1 and 2, dismissed with costs." 'Direct the plaintiff to serve a proposed form of Amended Technology & Construction List Statement by 5pm on 30 August 2019.' 'Direct the defendants to notify the plaintiff...