W & K Consulting Pty Ltd v Leda Management Services as trustee for Leda (NSW) Finance Trust [2024] NSWDC 122

Procedural Posture

Civil Proceedings; Notice of Motion Seeking Dismissal, Strike Out or Stay of Proceedings / Interlocutory Procedural Ruling Before Filing of a Defence

Legal Issues

1. 1 ['Whether the consent judgment and notation in earlier proceedings barred the plaintiff from bringing the present proceedings by res judicata, issue estoppel, cause of action estoppel or Anshun estoppel.' 'Whether the present proceedings should be dismissed under UCPR r 13.4 as frivolous or vexatious, disclosing no reasonable cause of action, or an abuse of process.' 'Whether the statement of claim should be struck out under UCPR r 14.28 or the proceedings stayed.' 'Whether the present proceedings concerned the same subject matter as the earlier proceedings.']

Ratio Decidendi

The defendant/applicant did not establish that the present proceedings concerned the same subject matter as the earlier consent judgment or that the plaintiff/respondent acted unreasonably by not bringing the present claim in the earlier proceedings. Properly construed, the notation to the earlier consent judgment was not a court order and did not bar fresh proceedings concerning distinct claims for reasonable notice of termination, fees and long service leave entitlements. The pleadings and evidence did not show the present claim was clearly untenable, frivolous, vexatious, an abuse of process, or liable to be struck out or stayed by reason of res judicata, issue estoppel, cause of...

Court Disposition

The defendant/applicant's notice of motion was dismissed, with costs payable to the plaintiff/respondent.

Orders

• ['The notice of motion filed by the applicant defendant on 13 December 2023 is dismissed.' "The applicant defendant is to pay the respondent plaintiff's costs of the dismissed motion." 'The exhibit may be returned.' 'Appropriate case management orders will be made after hearing from the parties.']