Gould v Day [2003] NSWSC 810

Gould v Day [2003] NSWSC 810

The Amended Statement of Claim was unsustainable because Emmett J had already determined, on the merits, the same issues of principle arising from the same subject matter between Mr Gould and the defendants, and those determinations applied notwithstanding that the present proceeding sought damages rather than injunctive relief. Accordingly, relief was appropriate under Pt 13 r 5 and/or Pt 15 r 26, and the pleading was dismissed.

Jurisdiction
Australia
Judgment Date
28 August 2003
Procedural Posture
Common Law Division Proceeding Concerning Whether an Amended Statement of Claim Should Be Dismissed, Stayed or Struck Out / Hearing of Two Questions Referred to a Judge by Assistant Registrar Howe
Outcome
Amended Statement of Claim dismissed. Plaintiff to pay defendants' costs.
Legal Topics
['sustainable Cause of Action' 'dismissal, Stay or Striking Out of Pleading' 'res Judicata and Issue Estoppel' "bankrupt's Capacity to Maintain Proceedings" 'property Divisible Among Creditors' 'trade Practices Act Boycott and Corporation Provisions']
['civil Procedure' 'bankruptcy' 'trade Practices'] ['sustainable Cause of Action' 'dismissal, Stay or Striking Out of Pleading' 'res Judicata and Issue Estoppel' "bankrupt's Capacity to Maintain Proceedings" 'property Divisible Among Creditors' 'trade Practices Act Boycott and Corporation Provisions']

Case Brief

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Procedural Posture

Common Law Division Proceeding Concerning Whether an Amended Statement of Claim Should Be Dismissed, Stayed or Struck Out / Hearing of Two Questions Referred to a Judge by Assistant Registrar Howe

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim should be dismissed or stayed pursuant to Pt 13 r 5, or struck out pursuant to Pt 15 r 26.' 'Whether, if a cause of action were shown, Stephen Gould could maintain the action personally because the property fell within property excluded by s 116(2) of the Bankruptcy Act 1966.' 'Whether the prior Federal Court determination by Emmett J precluded relitigation of the same subject matter against the same defendants.' 'Whether the claims under the Trade Practices Act provisions were sustainable against the defendants.']

Ratio Decidendi

The Amended Statement of Claim was unsustainable because Emmett J had already determined, on the merits, the same issues of principle arising from the same subject matter between Mr Gould and the defendants, and those determinations applied notwithstanding that the present proceeding sought damages rather than injunctive relief. Accordingly, relief was appropriate under Pt 13 r 5 and/or Pt 15 r 26, and the pleading was dismissed.

Court Disposition

Amended Statement of Claim dismissed. Plaintiff to pay defendants' costs.

Orders

  • ['I order that the Statement of Claim be dismissed.' "I order the plaintiff to pay the defendants' costs."]